If you remember your first-year Civil Procedure class, my guess is that you'll recall that res judicata -- issue and claim preclusion -- was a somewhat difficult subject.
But I bet your final exam on the topic was nowhere near as complicated as this one. And I'm pretty much certain that your final exam answer wasn't -- as here -- 33 single-spaced pages.
It involves claim preclusion. It involves issue preclusion. It involves the merits. It's got everything a complicated law school hypothetical would present. Plus a whole lot more.
It's even an unfair law school hypothetical. Which are the ones I love best. Since part of the opinion is about complicated issues of first impression; e.g., whether there should be a bright-line (or, in the alternative, a flexible) rule regarding when post-filing events should potentially be subject to claim preclusion.
(You'll be happy to know that the Ninth Circuit adopts the bright-line rule. Which, by definition, is easier to both remember and apply. "We now confirm that for purposes of federal
common law, claim preclusion does not apply to claims that
accrue after the filing of the operative complaint.")
Interestingly, most of the 33-opinion is actually dicta. Important, still. But dicta nonetheless. The district court dismissed the plaintiff's second suit as barred by both claim preclusion as well as issue preclusion. The Ninth Circuit disagreed -- at least in part -- on both points. Claim preclusion didn't apply because the cause of action accrued after the first suit (even though there was undeniably some overlap), and issue preclusion only applied to certain portions of the damages claims.
But the Ninth Circuit nonetheless affirmed the district court, holding that the plaintiff's claim was barred on the merits. Her First Amendment conduct was not, the court held, a substantial factor in the City's refusal to hire her. Instead, it refused to hire her because she had previously been fired by the City for cause. Despite the fact that the first jury concluded that this firing was pretextual. It still works, the panel says, to bar her from recovery on the merits.
All interesting stuff. Even for readers whose eyes might gloss over every time the word "preclusion" rears its ugly head in the opinion.
